The Supreme Court on Friday afternoon, extended its Ban on the Removal from the U.S. of Venezuelan Men currently in Immigration Custody in the Northern Region of Texas. In an Eight-page Unsigned Opinion, the Justices sent the Case back to a Federal Appeals Court for another look, and Blocked the Trump (R) Administration from Removing any of the Men from the U.S. under an 18th-century Wartime Law, until the Appeals Court are Resolved. The Court instructed the U.S. Court of Appeals for the 5th Circuit, to determine the kind of Pprocedures to which Detainees are entitled to Challenge the Removals. But it indicated that the Procedures that the Government used in April, when it was ready to Carry out Removals before the Supreme Court stepped in, were Not enough to Satisfy the Constitution’s Guarantee of Fair Treatment.
Justice Samuel Alito Dissented from the Court’s Order, in a 14-page Oopinion joined by Justice Clarence Thomas. In Alito’s View, the Supreme Court had “no authority to issue any relief.”
Friday’s Opinion was yet another Chapter in a Dispute that began in March, when the Trump Administration initiated efforts to Remove Noncitizens who it Designated as Members of a Venezuelan Gang, known as Tren de Aragua, pursuant to a March 15th Executive Order issued by Trump. The Order relied on the Alien Enemies Act, a 1798 Law, that gives the President the Power to Detain or Remove Citizens of an Enemy Nation without a Hearing or any other Review by a Court, if Congress declares War or there is an “Invasion” or “Predatory Incursion.” The Law has only been Invoked Three times, during the War of 1812, World War I, and World War II.
In His March 15th Order, Trump indicated that Members of Tren de Aragua were “perpetrating, attempting, and threatening an invasion or predatory incursion” against the U.S. Therefore, He concluded, any Venezuelan Citizen in the U.S. who is 14 years Old or Older can be “apprehended, restrained, secured, and removed as” an Alien Enemy. Even before Trump’s Order went into effect, a Group of Detainees went to Federal Court in Washington, D.C., asking Chief U.S. District Judge James Boasberg to Stop their Removal and Challenging their Designation under the Alien Enemies Act.
Boasberg directed the Federal Government Not to Remove anyone under the Alien Enemies Act, but News Reports later indicated that more than 200 Noncitizens were taken to El Salvador from the U.S. on March 15th, after Boasberg issued His Order. The Detainees were taken to El Salvador’s Notorious Maximum-Security Prison. On April 7th, the Supreme Court put Boasberg’s Order On-Hold. It explained that the Detainees had brought their Challenge in the Wrong Place: Because they were Challenging their Designation as Alien Enemies, they should have Filed their Lawsuits as Petitions for Habeas Corpus in Texas, where they were being Held, rather than in Washington.
The Supreme Court also told the Government, that it should provide Anyone who was Designated for Removal under the Alien Enemies Act with Notice of that Designation, which must be provided in a Time and Manner that will allow them to Challenge the Removal before it occurs. In the wake of those Instructions, a Group of Venezuelan Men in Immigration Custody in the Northern Region of Texas went to Federal Court on April 16th, seeking once again to Block their Rmoval under the Alien Enemies Act. U.S. District Judge James Wesley Hendrix Denied their Request, indicating that the Detainees were likely “not facing such an imminent threat.”
The Detainees returned to Hendrix and Renewed their Request, telling Him that some of them had been Notified that their Removal could indeed occur at any moment. Moreover, they told Him, even the Men who had received Notices had Only received Notices in English, even though most of them speak only Spanish, and the Notices did Not Inform the Men that they can Challenge their Designation as “Alien Enemies.” When Hendrix had Not yet Acted on their Request, the Detainees went to the 5th Circuit and then to the Supreme Court. Shortly before 1am on April 19th, the Supreme Court Ordered the Government “not to remove any member of” the would-be Class of Detainees from the U.S. unless and until the Supreme Court indicates Otherwise.
In its Unsigned Opinion on Friday afternoon, the Justices explained that the Court-of-Appeals was Wrong when it Dismissed the Detainees’ Appeal on the ground that it Lacked the Power to Review it. Appeals Courts, the Court reasoned, have the Power to Review Non-Final Orders that “have ‘the practical effect of refusing an injunction.’” When a Federal District Court does Not take Action “in the face of extreme urgency and a high risk of ‘serious, perhaps irreparable,’ consequences may have” precisely that effect, as Hendrix’s Failure to Rule on the Detainees’ Request for more than 14 hours did, the Court concluded.
Justice Brett Kavanaugh wrote a Short separate Concurring Opinion, in which He emphasized that the Court’s Opinion today “simply ensures that the Judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed.” He added that, if it were up to Him, He would have kept the Case in the Supreme Court to Resolve the “critical legal issues” quickly, rather than sending it back to the Lower Courts.
In His Dissent, Alito Disputed the Majority’s suggestion that Hendrix had effectively Denied the Detainees’ Request by Failing to Act on it, calling it a “mischaracterization of what happened in the District Court.” Instead, He posited, the Detainees had made an “extraordinary demand,” and Hendrix was simply Working very hard to Respond to it Quickly but Carefully.
Alito also Argued that the Detainees were Not entitled to Emergency Relief because they had Not shown that they were likely to Succeed on the Merits, One of the Requirements for Temporary Relief. But although the Detainees needed to show “that they were likely to establish that class relief is available in a habeas proceeding” and that a Class could be Certified, Alito contended, they likely would be Unable to do either of those things.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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